Judge: Encana suit must be in tribal court

Apr 25, 2012 By Ben Neary, The Associated Press

CHEYENNE -- In a ruling hailed as a victory for American Indian sovereignty, a federal judge has tossed out a lawsuit that Encana Oil and Gas Inc. had filed against a tribal judge on the Wind River Indian Reservation.

U.S. District Judge Alan B. Johnson of Cheyenne on April 17 dismissed Encana's lawsuit against John St. Clair, the chief judge of the Shoshone and Arapaho Tribal Court.

Encana sued St. Clair in February over his ruling that his court had jurisdiction over the company in a wrongful death lawsuit.

St. Clair ruled in December that Encana had to answer a tribal court lawsuit brought by the estate of Jeremy Jorgenson, a young Shoshone man who died on Jan. 1, 2009.

According to statements in court papers, Jorgenson died in a car wreck after drinking at a drilling site operated by DHS Drilling Co., a contractor for Encana. Attempts to reach Riverton lawyer John R. Vincent, representing Jorgenson's estate, were unsuccessful Tuesday.

Jorgenson was employed as a "floor-hand" with DHS, Encana's lawsuit said.

The company maintained in its suit that the well site where Jorgenson worked and the site where he wrecked his car were all on land that was originally part of the Wind River Indian Reservation but which had been sold to the federal government in 1904.

"Simply put, none of the operative events with respect to the estate's claims took place within federally recognized Indian County," Encana stated in its lawsuit.

Before dismissing Encana's lawsuit, Johnson last week rejected the company's request for an injunction against St. Clair. In his order denying the injunction, Johnson noted that Encana had not exhausted its options in tribal court.

"This court can say with certainty that defendant Judge St. Clair is not violating federal law by continuing to preside over the case against Encana at this stage," Johnson wrote. "In fact, our finding urges the tribal court to retain and develop this case until the jurisdictional issue can be reviewed by the Shoshone and Arapaho Court of Appeals."

Encana spokesman Randy Teeuwen said Tuesday that the company will appeal Johnson's dismissal to the 10th Circuit Court of Appeals in Denver, "because of the jurisdictional question we still believe exists." He said the company had no other comment on Johnson's ruling.

Kimberly D. Varilek, attorney general of the Eastern Shoshone Tribe, said Tuesday she regards Johnson's dismissal of Encana's suit as a victory for tribal sovereignty.

Johnson's ruling enhances the tribal court's ability to adjudicate matters to the fullest extent, Varilek said. She said the ruling upholds the principle that tribal courts should hear a matter fully before it is possible to appeal to federal court.

Varilek said Jorgenson was working near the Pavillion area. She said Encana had entered into a lease agreement with the tribes to pay for the value of the materials produced there.

Varilek said the tribes would need to be involved in any argument over Encana's claim that their reservation had been diminished by past actions.

Varilek said the Eastern Shoshone Tribe takes the position that although the surface of the land was put under control of the U.S. Bureau of Reclamation, both tribes retained ownership of the underlying minerals and maintain that the land itself is still legally Indian Country.

"Despite the arguments about diminishment, Judge Johnson looked at this and said those arguments are not really going to get around the fact that the tribal court has the authority and the capability and should make those determinations before the federal court tries to interfere," Varilek said. "And that's really the principle that we're looking for, and I think that he's just really maintained that across the board."

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